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Wall Emergency, Even If Legal Under Existing Law, Violates the Separation of Powers

Our Constitution divides federal power among three branches of government: the legislative, the executive, and the judicial. One of the powers given exclusively to the legislative branch (Congress) is to spend money, or to appropriate money for the executive branch to spend, in enforcing the law (which is the president’s power and indeed duty). Specifically, Article I, Section 9 (the Appropriations Clause) says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” And of course, the purposes for which Congress can exercise this “power of the purse” are enumerated in Article I, Section 8, which is why we have legal battles over, for example, whether some federal law fits into the power to regulate interstate commerce (aka the Commerce Clause). So the idea that the executive branch can’t exercise legislative power means that it can neither spend money that hasn’t been appropriated nor create new programs.

Now, congressional refusals to appropriate that money or create those federal programs don’t give the president more power, even if he thinks it’s really important. This is what got President Obama in trouble: DACA and DAPA, for example, which I generally support as a matter of policy, are new programs that create new immigration statuses—so these executive actions have no constitutional basis, no matter what kind of pen or phone he used to enact them. Stated another way, a presidential failure to get the deal he wants from Congress on a major policy priority doesn’t trigger new executive powers.

But you know what does trigger certain executive powers? A national emergency. Various presidents have done things as emergency actions—Lincoln during the Civil War most notably, when Congress literally couldn’t be brought back in session—but the first official such declaration was made by Woodrow Wilson (not a promising start), and many presidents would go on to declare emergencies of various kinds, without limiting their scope or duration or citing any statutes. Presidential emergency actions were taken largely without congressional oversight or other checks, though one notable exception was the legal pushback on Harry Truman’s steel-mill seizures during the Korean War, culminating in the Supreme Court’s 1952 Youngstown Steel ruling, which to this day provides the rubric for evaluating executive action in the face of congressional acquiescence, silence, and disapproval. Until the Watergate era, when Congress passed and President Gerald Ford signed the National Emergencies Act.

The NEA doesn’t actually give the president the power to declare national emergencies. Instead, it acknowledges that power and then restricts it, setting up rules for how it’s to be used. One of those provisions gave Congress power to reject an emergency declaration by a majority vote of both houses. But that sort of “legislative veto” (without which the NEA wouldn’t have passed) was ruled unconstitutional in the 1983 case of INS v. Chadha (which technically involved a one-house veto), so now Congress can override the president only with a vetoproof super-majority.

But again, the NEA doesn’t give the president powers itself. Instead, it triggers hundreds of other statutes that “unlock” certain executive authorities upon an emergency declaration. The problem is that “emergency” isn’t typically defined in those relevant laws and presidents have declared emergencies in a range of situations that don’t necessarily match the common understanding of that word, which would be something like an immediate (“emergent”) threat requiring urgent attention. In other words, English speakers don’t typically think of “emergency” to be synonymous with “important issue” or “long-time serious problem.” (Think of a hospital ER, where you wouldn’t typically go to treat cancer.)

To wit, from the NEA’s enactment until today’s Wall Emergency, presidents declared 58 emergencies—most of them related to trade restrictions under the International Emergency Economic Powers Act—and 31 have been renewed annually. Did you know, for example, that we still live under Jimmy Carter’s national emergency declaration responding to the taking of hostages in Iran in 1979? Or under George W. Bush’s 2006 “national emergency with respect to blocking property of certain persons undermining democratic processes or institutions in Belarus,” which was declared after fraud allegations in the Belarusian presidential election? So Donald Trump is building on broad congressional delegations and past presidential actions.

To be sure, President Trump undermines his own litigating position by suggesting that there isn’t a real emergency—“I didn’t need to do this,” he said during the announcement—and by taking this action only after months of negotiations and a government shutdown, and after signing legislation that gave him some but not all of what he wanted. He would have been on firmer ground in this respect had he done this when he first mentioned “the caravan,” or indeed on day 1 of his presidency. Still, I can’t see the Supreme Court either striking down or upholding today’s action because there is or is not a real “emergency.” Lower courts might do so, but I have a hard time imagining the justices ruling that a statutorily undefined term controls.

Which takes us to the legal provisions on which the wall litigation will actually turn: the three funding statutes triggered by the emergency declaration and from which money will be shifted to wall construction. These are: (1) the Treasury Forfeiture Fund (31 USC 9703); (2) Department of Defense funds for “Support for Counterdrug Activities” (10 USC 284); and (3) Department of Defense military construction projects (10 USC 2808). I’m not going to parse the technicalities here because the focus of this post is executive power under the Constitution (and this post is already too long), but suffice it to say that there are colorable arguments on both sides. Legal rulings will ultimately turn on interpretation and application of relevant terms in this novel context. For example, if the forfeiture provision is interpreted to be usable for anything that “stops drug trafficking,” it’s certainly plausible—and good enough for a judge—that a wall is legitimately intended to do that. But if you read the statute to only authorize the funds to be used for domestic law enforcement purposes, then the wall funding is dubious. Similarly, the DoD provisions turn on whether the emergency project “requires use of the armed forces” or “may require” using them. I could argue it either way, depending on whether I define the purpose as “protecting the border” or “national security” versus “building a wall” or “supporting ICE.”

But even if this wall construction satisfies the legal niceties—a big but not implausible if—there’s something odd and wrong about what’s going on here. Because it looks an awful lot like the executive branch is engaged in legislative activity. So even if today’s action is technically legal under existing law, that law itself may be unconstitutional—at least if it’s read to allow building the wall in this manner. That is, the NEA or the provisions it triggers could be an improper delegation of legislative authority by Congress. Chief Justice John Roberts could do a lot with that in the name of “constitutional avoidance”—shying away from having to find something unconstitutional—but even if he thinks the wall can be justified under, say, the taxing power, that power properly belongs to Congress. (This will be a running theme of my commentary; stay tuned.)

Even worse, today’s action sets a terrible precedent for future administrations, whose policy goals may be radically different. This action brings us one step closer to enacting major legislative goals—Medicare for all? Green New Deal? gun control?—through executive fiat. Nobody who takes the constitutional separation of powers seriously should support it.